J EFFREY M. HARPER FAA O FFICE OF R EGIONAL C OUNSEL 1601 L IND A VE ., SW R ENTON , W ASHINGTON 98057 T ELEPHONE : ( 425 ) 227

- 2161 F ACSIMILE : ( 425 ) 227

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### UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFF ICE OF HEARINGS

WASHINGTON, D.C.

In the Matter of: Air Medical Resource Group, Inc. DMS No. FAA

- 2014

- 0552 FAA Case No. 2014NM070012

Honorable Richard C. Goodwin



### MOTION TO DEEM ALLEGATIONS ADMIT TED OR, IN THE ALTERNATIVE , STRIKE RESPONDENT’S ANSWER

Complainant moves the Court to deem certain allegations in its Complaint as admitted. 14 C.F.R. §§ 13.209(e) ⇒ and (f). In the alternative, Complainant moves the Court to strike Respondent’s Answer. 14 C.F.R. §§ 13.218(f)(4). ⇒



### 1. Statement of Facts

R espondent has been authorized by the Administrator to conduct operations as an air carrier, and conducts those operations pursuant to Part 135 of the Federal Aviation Regulations. Complaint ¶ II.1; Answer ¶ II.1.

On August 26, 2014, the Complaint in this c ase was served on Respondent. Exhibit s 1 ⇒ and 2

. ⇒ Less than 26 hours later, Respondent filed its Answer. Exhibit s 2 ⇒ and 3 ; ⇒ Answer. With the exception of the allegation that Respondent holds an Air Carrier Certificate and conducts Part 135 operations, the Answer responded to every allegation in part II of the Complaint with the statement:

“AMRG lack s knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in section II, paragraph number [##] of the Compl aint and therefore, denies same and demands strict proof thereof.” Answer, ¶¶ II.2

– II. 19.Prior to serving the Complaint, Complainant provided Respondent notice of the allegations in a Notice of Proposed Civil Penalty, served April 4, 2014 (received by AMR G on April 8, 2014) and a Final Notice of Proposed Civil Penalty, served August 6, 2014. Exhibits 4–7. ⇒



### 2. Respondent’s position that it is “without knowledge or information” is an admission of Complainant’s allegations. As the proponent of this motion, Complainant bears the burden of proof by a preponderance of evidence. 14 C.F.R. §§ 13.223 ⇒ and 13.224(b) ⇒

.

As a Part 135 air carrier, Respondent is required to maintain certain records. 14 C.F.R. § 135.63. ⇒ Among the records which must be maintained for its pilots are:

1. The pilot’s aeronautical experience in sufficient detail to determine the pilot’s qualifications to pilot air craft in operations under this p art. § 135.63(a)(4)(iii); ⇒

2. T he date and result of each of the initial and recurrent competency tests and proficiency and route checks required by this p art and the type of aircraft flown during that test or check. § 135.63(a)(4)(iv); ⇒

3. T he pilot’s flight time in sufficient detail to determine compliance with the flight time limit ations of this part. § 135.63(a)(4)(vii); and ⇒

4. T he pilot’s check pilot authorization, if any. § 135.63(a)(4)(viii). ⇒

A dditionally, Respondent is required to “prepare and keep current a manual setting forth the certificate holder’s procedures and policies acceptable to the Administrator.” 14 C.F.R. § 135.21(a). ⇒

A Respondent may deny an allegation on the basis that it lacks sufficient knowledge or information to admit or deny. 14 C.F.R. § 13.20 9(e). ⇒ By signing such an answer, the party certifies the Answer is “based on reasonable inquiry.” 14 C.F.R § 13.207(b). ⇒ Where a party’s assertion of ignorance is obviously a sham, the facts alleged in the Complaint are effectively admitted. 1 Harvey Aluminum (I nc.) v. N.L.R.B. , 335 F. 2d 749, ⇒

1 “Under comparable provisions of the Federal Rules of Civil Procedure, an answer asserting want of knowledge sufficient to form a belief as to the truth of facts alleged in a complaint does not serve as a denial of the assertion of ignorance is obviously sham. In such circumstances the facts alleged in the complaint stand admitted.”

Motion to Deem Allegations Admitted or Strike Respondent’s Answer In the Matter of Air Medical Resource Group, Inc. J EFFREY M. H ARPER , FAA A TTORNEY TEL: (425) 227

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- 0552 Page 2 of 7758 (9th Cir. 1964) citing Mesirow v. Duggan , 240 F.2d 751, ⇒ 756 (8th Cir. 1957)
, 2 see also Djourabchi v. Self , 571 F.Supp.2d 41, 50 (D.D.C. 2008). ⇒ A finding that Complainant ’ s allegations have been deemed admitted is appropriate when Respondent’s answer amounts to an impermissible general denial. 14 C.F.R. § 13.209(e). ⇒

Despite these requirements, Respondent avers it lacks the knowledge required to admit or deny:

1. The currency o f or language from the manual it is required to keep under 14 C.F.R. § 135.21(a). Answer ¶ ¶ II.2 and 3.

2. Whether a particular pilot was qualified to act as pilot

- in

- command for its 135 operations. Answer ¶¶ II.5 and 15. ( Respondent is required to keep records sufficient to determine the pilot’s qual ification to pilot aircraft under Part 135. 14 C.F.R. § 135.63(a)(4)(iii). ⇒ )

3. Whether certain flights for a particular pilot were documented on Respon dent’s flight and duty time records for that pilot. Answer ¶¶ II.8 and II.18. ( Respondent is required to maintain records sufficient to determine compliance with the flight time limitations of Part 135. 14 C.F.R. § 135.63(a)(4)(vii). ⇒ )

4. Whether flight and duty time records had been revised. Answer ¶¶ II.10 and II.19. ( Again, Respondent is required to keep records sufficient to determine compliance with the flight time limitations; the Complainant assert s Respondent changed its own records. 14 C.F.R § 135.63(a)(4)(vii). ⇒ )

5. Whether a named individual was its Assistan t Director of Operations. Answer ¶ II.13

. ( Its Assistant Director of Operations is named in its Operations Specifications. Exhibit 8

. ⇒ )

6. Whether a named individual held authorization as a check pilot. Answer ¶ II.14

. ( Respondent is required to keep records of its pilots ’ check pilot authorization. 14 C.F.R § 135.63(a)(4)(viii). ⇒ )

2 “ [The allegation in question] was a matter of record in appellee’s control and peculiarly within his knowledge, and, under the law and these circumstances, his answer, sayin g that he ‘was without knowledge or information sufficient to form a belief’ as to that matter, did not constitute a denial of the averments of the petition on that score nor put them in issue, and, hence, in the law’s regard, they stood admitted.”

Motion to Deem Allegations Admitted or Strike Respondent’s Answer In the Matter of Air Medical Resource Group, Inc. J EFFREY M. H ARPER , FAA A TTORNEY TEL: (425) 227

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- 0552 Page 3 of 77. Whether a named individual completed a proficiency check on a particular date. Answer ¶ II.16. ( Respondent is required to keep records of proficiency checks. 14 C.F.R § 135.63(a)(4)(iv). ⇒ )

8. Whether a named i ndividual performed the duties of a check airman on particular dates. Answer ¶ II.17. ( Respondent is required to keep records of both check flights and pilots flight time. 14 C.F.R § 135.63(a)(4)(iv) and (vii). ⇒ )

Since the truth or falsity of these allegations can be readily determined from records that Respondent is required to keep, Respondent’s preposterous claims of ignorance indicate a lack of inq uiry, an inability to maintain required records (and therefore an admission), a lack of qualification to hold the air carrier certificate for which maintenance of such records is a condition, or all three. Respondent was first put on notice of the allegati ons no later than April 8
, 2014, 14 0 days before the C omplaint was a filed

. If 14 0 days was not enough time for Respondent to conduct an inquiry, Respondent has 30 days to answer the Complaint

— but barely used one

.

In Harvey , respondent denied an allegation in the complaint that it and a co

- respondent were affiliated business enterprises. Harvey at 757. ⇒ In its answer, as here, co

- respondent General denied this allegation on the grounds that:
“[Respond ent did] not have knowledge or information sufficient to form a belief as to the truth or falsity of [the allegation] and therefore denies each and eve ry such allegation.” Id. The Respondent maintained this claim through the hearing, where the trial examiner determined that Respondent’s failure to respond constituted an admission. I d. ⇒ On appeal, the N inth C ircuit observed that while generally an answer claiming to lack sufficient knowledge operates as a denial, the rule does not apply where the claimed “ignorance is obviously s ham.” 3 Harvey at 757

– 58. ⇒ The court noted that whether co

respondents were affiliated business enterprises was a fact that was “necessarily within the knowledge of [Respondent’s] managing officers .” Harvey at 758. ⇒ As the court observed, administrative h earings should concern the real issues between the parties. Id. ⇒

3 As he re, the proceeding in Harvey was not bound by the Federal Rules of Civil Procedure, nonetheless, the court found the principle applicable to the administrative proceeding, noting the administrative rule was comparable to Fed. R. Civ. P. 8. ⇒ Harvey , Note 32

. ⇒ Although the Federal Rules of Civil Procedure do not apply in this case, the Rules and the cases applying them are generally viewed as providing persuasive guidance on the meaning and extent of the procedural rules for this forum found in 14 C.F.R. Part 13, Subpart G. ⇒ In the Matter of KDS Aviation , Inc. , FAA Order No. 1991

- 17 ⇒ at 5 (May 30, 1991); In the Matter of Boris Kirola , FAA Order No. 199 4

- 39 ⇒ at 5 (December 9, 1994).

Motion to Deem Allegations Admitted or Strike Respondent’s Answer In the Matter of Air Medical Resource Group, Inc. J EFFREY M. H ARPER , FAA A TTORNEY TEL: (425) 227

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- 0552 Page 4 of 7American Photo Copy Equipment Co. v. Rovico, Inc. involved a s imilar frivolous denial. 359 F.2d 745 ⇒ (7th Cir. 1966). In that case, the Defendant alleged in a counterclaim in detail the terms of Plaintiff’s license. Id. ⇒ at 746. Plaintiff admitted a part of the assertion, but claimed is lacked sufficient knowledge to admit or deny the rest. Id. ⇒ The court held that since the terms of the license were self

- evidently known to t he plaintiff, Plaintiff’s claims did not in effect deny Defendant’s claim. Id. ⇒ In addition to the rational e provided in Harvey , the court als o noted that F.R.C.P. 8(b) stated “denials shall fairly meet the substance of the averments denied” and plaintiff’s claims “exhibit[ed] a lack of fairness which completed discredit[ed] its statement that it is without knowledge of or information sufficient to form a belief as to the truth... .” 4 Id. ⇒

A s in American Photo Copy Equipment , Respondent here fails to fairly address Complainant’s allegati ons. Like the Respondent in Harvey , Respondent here has made the same sort of frivolous denial, using language almost identical to that used by Respondent in Harvey. The matters alleged by Complainant which Respondent denies are, just as in Harvey , necessa rily within the knowledge of Respondent since Respondent is required to keep records relating to those matters. The appropriate remedy is the same as in Harvey and American Photo Copy Equipment

— a finding by this Court that the allegations in question are admitted. Complainant asks this court for that relief as to paragraphs II.2, 3, 5, 8, 10, 13, 14, 15, 16, 17, 18, and 19 of the Complaint

— the allegations based on information which Respondent, contrary to its spe cious claims, has
access to.
It is possible Respondent ’s claimed ignorance of the facts results from its failure to conduct an inquiry into those facts before filing its Answer. The rules establish the remedy in such a case. Where a party signs a document that does not comply with 14 C.F.R. § 13.207 ( which requires the party signing the document to have conducted reasonable inquiry ) that document may be stricken. 14 C.F.R § 13.207(c)(1). ⇒ Should the Court believe Respondent’s purported lack of knowledge arises from Respondent’s failure to conduct the required inquiry, it should strike the Answer as provided for by that rule. 5 Courts do not a llow parties to benefit from their deliberate efforts to remain ignorant of the relevant facts.

4 F.R.C.P. 8(b)(2) ⇒ currently reads “Denials

— Responding to the Substance. A denial must f airly respond to the substance of the allegation. ” Although the wording is different, the rule still imposes an obligation to answer claims “fairly.” 5 See Moriarty v. Hills Funeral Home, Ltd. , 1998 WL 149600 ⇒ (N.D. Ill. 1998) and Sports Specialties Corporation v. Lee , 1992 WL 315206 ⇒ (N.D. Ill 1992), both striking the entirety of the respective Answer s which consisted of unreasonable denials of ne arly the entire complaint. In Moriarty , the

Motion to Deem Allegations Admitted or Strike Respondent’s Answer In the Matter of Air Medical Resource Group, Inc. J EFFREY M. H ARPER , FAA A TTORNEY TEL: (425) 227

- 2161; FAX: (425) 227

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### 3. Exhibits

1. C ertificate of Service, Complaint

. ⇒
2. Fa csimile Transmission Confirmation

. ⇒
3. Em ail from Jared M. Allen, Esq, The Aviation Law Firm to FAA Counsel J. M. Ha rper serving Answer. ⇒
4. Not ice of Proposed Civil Penalty. ⇒
5. Pos tal Service Delivery Information, Notice of Proposed Civil Penalty. ⇒
6. Fi nal Notice of Proposed Civil Penalty. ⇒

7. Pos tal Service Delivery Information, Final Notice of Proposed Civil Penalty. ⇒
8. Ai r Medical Resource Group Inc. Operations Specifications Paragraph A006. ⇒



### 4. Conclusion Respondent’s claims of ignorance in paragraphs II.2, 3, 5, 8, 10, 13, 14, 15, 16, 17, 18, and 19 of its Answer can be treated in one of two ways. Either they are sincere, in which case Complainant asks the Court to deem the corresponding portions of the Complaint (Paragraphs II.2, 3, 5, 8, 10, 13, 14, 15, 16, 17, 18, and 19) admitted, as the matters alleged are ones which are necessarily within Respondent’s knowledge. Alternat ively, Respondent’s denials of those matters were not made after reasonable inquiry, and may have been made for an improper purpose, such as causing unnecessary delay. In that case, Complainant asks the Court to strike Respondent’s Answer in its entiret y, and to order Respondent to file a responsive Answer by September 30, 2014.

Respectfully submitted this 2 nd day of September , 2014.

________________________ J

. M. Harper FAA Attorney

Court noted that striking the entirety of the Answer was appropriate to avoid resorting to “pleading patchwork.”

Motion to Deem Allegations Admitted or Strike Respondent’s Answer In the Matter of Air Medical Resource Group, Inc. J EFFREY M. H ARPER , FAA A TTORNEY TEL: (425) 227

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- 0552 Page 6 of 7Exhibit 1Exhibit 21 Harper, Jeffrey (FAA)

From: Jared Allen <jallen@aviationlawexperts.com> Sent: Wednesday, August 27, 2014 1:00 PM To: Harper, Jeffrey (FAA) Cc: Greg Winton Subject: In the Matter of Air Medical Resources Group, Inc. FAA No. 2014NM070012 Attachments: AMRG Answer & Affirmative Defenses 08272014.pdf

Mr. Harper:
Attached please find an electronic co urtesy copy of Respondent’s Answer a nd Affirmative Defenses filed today concerning In the Matter of Air Medical Resour ces Group, Inc. FAA Case No. 2014NM070012. A copy has also been sent to your office via U.S. Mail.

Regards,

Jared M. Allen, Esq. The Aviation Law Firm 1997 Annapolis Exchange Parkway Suite 300 Annapolis, Maryland 21401 JAllen@AviationLawExperts.com Tel: (301) 294-8550 Fax: (866) 568-9886



### Exhibit 3Exhibit 4

### Exhibit 5Exhibit 6

### Exhibit 7Exhibit 8